FISA Bites Back

I was shocked, shocked!

Saturday morning I awoke to a tweet by my President, Donald J. Trump, charging that the Obama Administration (well he said Obama, but okay) had conducted electronic surveillance of a campaign-related server in Trump Tower. For those not paying attention, the tweets were, “Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!” and “Is it legal for a sitting President to be ‘wire tapping’ a race for president prior to an election? Turned down by court earlier. A NEW LOW!” and, “How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”

I have to admit that at first I thought that this must be a hack. I could not believe that the President would tweet such a thing, and thought it must be someone else.

Alas, I was wrong. It was President Trump. Now the country is aflame on these questions: did the Obama Administration spy on the Trump campaign, and was that legal?

After a lot of denying, parsing, excusing, and debating, it appears that well, maybe, just maybe, there was electronic surveillance of the Trump campaign by the United States Federal Government. It appears further that, if there was surveillance (and we don’t quite know that), it was probably approved by a Foreign Intelligence Surveillance Act (FISA) court in October of 2016 (and we don’t quite know that either), just a month before the General Election, and thus legal. As best I can tell from the news reports claiming these warrants were issued, the surveillance was requested first in June 2016 (keep that date in your mind), denied, and then requested again, and approved, in October 2016.

We should be clear on this. While the President referred to Watergate, this is not that. As far as we know, if the surveillance did occur, it was likely approved by a duly empowered court in response to a legal request made by the administration in furtherance of an investigation. As bad as it is, if this occurred, this was not an illegal wiretap.

And therein lies the problem.

From Wikipedia: “The Foreign Intelligence Surveillance Act of 1978 (‘FISA’ Pub.L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of ‘foreign intelligence information’ between ‘foreign powers’ and ‘agents of foreign powers’ (which may include American citizens and permanent residents suspected of espionage or terrorism).” FISA set up the Foreign Intelligence Surveillance Court (FISC) which meets in secret to determine if surveillance can be authorized.

The act was in response to allegations of improper use of federal surveillance capabilities against political opponents by the Nixon Administration, which were detailed in the Church and Rockefeller Commission reports following Watergate. The intent was to provide oversight by the courts, and Congress, to prevent future political misuse of these capabilities and to give that oversight some teeth. The act has been amended many times to keep up with advances in technology, address the “non-state actor” role in terrorism, and to clarify the rules related to warrant less and warrant searches, physical searches and many other provisions. Throughout the years this has all been done to improve the government’s capability, and reportedly these operations have thwarted many terrorist plots and may have saved many lives. FISA has been roundly criticized, however, by the left and right as a secret way for the government to spy on us all, based, potentially, on unclear links to terrorism or espionage.

FISA’s problem is that once the government has the legal right to secretly listen to the conversations, look at the emails, and “sneak-and-peak” at the computers and files of U.S. citizens, there is the potential of impropriety, or at least the appearance of such, and this impropriety will diminish the trust that Americans have in their government. There is no nice way to say it: we are trading liberty for security with FISA. The act may have been necessary and effective, but its propriety is questionable and the impact on our privacy significant. I do not doubt the FISC’s desire to do right. I doubt that they are going to always be able to do so, especially in our highly-charged political environment.

When Nixon tapped a political opponent’s phone, it was (probably) illegal. If the Obama Administration tapped into Trump’s server, as some allege, it was (probably) legal.

In 2013, Jennifer Granick and Christopher Sprigman wrote a scathing editorial on FISA, “The Secret FISA Court Must Go” (Daily Beast, July 24, 2013), arguing against the secret court. Their article is very informative and worth a read, and addresses mainly the functioning of the court and its relation to, at that time, newly discovered mass surveillance by the NSA. Their warning, however, was more general, and seems prescient. “Given what we know now, there is zero chance that the FISC — or any secret court — can save the United States from government excess and overreaching in the name of national security.”

Obama supporters are clinging to two points in this latest controversy (in addition to outright denial). First, that then-President Obama did not approve the wiretaps himself. The second is that the wiretaps, if they did occur, were based on probable cause and must have been approved by the FISC (though they claim that didn’t happen).

On the first point, let’s be clear. True, the President cannot approve the surveillance, only the FISC can, or it can be approved due to a criminal investigation by a judge. That said, the President must “authorize” requests for warrantless surveillance, and all requests for FISA warrants must have the “approval of the Attorney General of the United States.” That Attorney General was close Obama ally Loretta Lynch. It begs credulity that the President was unaware of any FISA-approved surveillance of then-candidate Donald Trump, which required authorization by Lynch.

In regards to point two, they are right. If they got approval from the FISC, the Justice Department would have had to offer probable cause. But how strong was that probable cause case? Who concocted it? Was it reliable? The court is a secret proceeding and we shall, perhaps, never know. Sans the felonious leaks, we would not even be talking about this. As Angelo M. Codevilla, Professor emeritus of international relations at Boston University, who served on the Senate staff dealing with intelligence oversight, wrote in 2013, “Although strictly speaking the [FISA] court could confer only a procedural imprimatur, in practice that would shield the bureaucracies – and the President – from having to defend the substantive value of any act of surveillance.”

The charge of collusion with the Russians to influence the election was clearly a political issue, and so far there has been no evidence presented, even to members of the relevant congressional committees, that said collusion occurred (Senator Chris Coons, member of the Senate Foreign Relations Committee, on Sunday, March 5th, said, “I have no hard evidence of collusion.” Director of Central Intelligence, James Clapper, said basically the same thing.). Mere communication is not collusion. It is not illegal to talk to Russians. Americans were very much aware of the collusion charge and apparently tens of millions did not believe it, or so the results of the election would tell us. Legally speaking, however, it was totally acceptable for the leader of one political party to ask for, and receive, permission to secretly listen in to communications of the opposing party during a hotly contested campaign, based on potentially politically-motivated allegations of foreign involvement. And that is just not right.

We may never know what the Obama Administration found out regarding the Trump campaign through this alleged (and legal) surveillance, again, if it happened. We may never know who in the Obama Administration, or the Democratic National Committee or the Clinton campaign, was given access to this information. Did Loretta Lynch, who would have to approve the FISA request, tip off Bill Clinton that such a request was coming during their chat on the tarmac in Phoenix in June 2016 (remember that date)? Did that inform the Clinton campaign’s line of attack against Trump as a Putin stooge?

Hillary Clinton did tweet in October that “computer scientists have uncovered a covert server linking the Trump organization to a Russian-based server.” How did she know that? Was that information from “independent investigators” as her campaign claimed, or did it start with Lynch? Did the “independent investigators” know to look because they were tipped off by Lynch? Or did Lynch know to authorize the surveillance because she was tipped off by Clinton? The charge of collusion definitely impacted the election, even if Trump won. It is clear that, post-election, the Trump Administration has been hampered by leaks that appear to be tied to this investigation, a fact that serves the Democratic Party’s cause. Secret surveillance, in this case, has had the predictable, and lamentable, effect of influencing our electoral process and undermining the people’s faith in our government.

The great fear about secret electronic surveillance is that it will eventually be abused for political purposes and used to target political opponents. There is no doubt that such surveillance is central to our fight against terrorism and as a means of thwarting foreign intelligence operations. For lots of good reasons FISA attempted to codify such surveillance in law in order to enable us to conduct it with oversight. The current controversy has, however, revealed that it is probably legal for the President of one party to surveil the candidate from another, if he can (through the Justice Department) show, in secret proceedings, probable cause. FISA, in this light, opens up a huge can of worms. Unfortunately, it may be that FISA made our worst fears legal. Maybe that was unavoidable given the world we live in, but it certainly is a shame.